Chill Gazpacho, Not First Amendment Rights:

Governmental Use of the Federal Grand Jury Against the Animal Rights Movement

Emily Garber

Introduction

            Governmental use of the grand jury has changed significantly since the right to a grand jury in “capital or otherwise infamous cases” was originally enshrined in the Fifth Amendment.  Though the American grand jury was initially designed as a safeguard on the rights of criminal defendants, it quickly became a tool used by political majorities to harass minority movements.  In the past sixty years, the government has discovered the grand jury’s efficacy as an investigative tool and begun to use the subpoena power of the grand jury to force political activists to provide information about their political movements, or else face imprisonment for contempt of court.  This use chills the First Amendment rights of political activists, as well as impeding political movements by resulting in the incarceration of activist leaders.

            The animal rights movement is the most recent movement subject to this governmental use of the grand jury.  The animal rights movement is a predominantly non-violent movement based on the principle that all sentient creatures are entitled to life and a basic standard of treatment.  However, because of political pressure from wealthy animal industries, including the meat and dairy lobbies and organizations that conduct research on animals, the animal rights movement has been labeled a “terrorist” threat.  While investigating the illegal actions of animal rights activists who have economically damaged animal enterprises, the government has subpoenaed animal rights activists to testify before grand juries, not expecting them to cooperate, and given the activists lengthy prison sentences when they refuse to provide political intelligence on the animal rights movement.  This use of the grand jury against activists is inappropriate, and the laws governing grand juries should be reformed to protect all activists’ First Amendment rights to expression and association.

The Origins of the Grand Jury

            The grand jury originated in twelfth-century England as a way for the King to expand the reach of the government’s prosecutorial power.[1]  At that time, criminal prosecutions were generally brought by individuals, though the King could act as a “super-privileged” individual with a longer reach.[2]  In 1166, during the reign of King Henry II, a legislative enactment called the Assize of Clarendon established juries of twelve people, directing them to formally accuse local lawbreakers.[3]  To ensure the vigor of these juries, those which declined to indict a particular suspect, or which did not indict a sufficient amount of suspects as a whole, would be fined.[4]  These juries reported their indictments secretly so that the accused could be seized by the sheriff without a chance to flee.[5]  The indicted were then tried by ordeal, for all intents and purposes meaning that the jury’s was the final human decision on their guilt.[6]

            In 1215, King John signed the Magna Carta, beginning the notions of individual protection and due process.[7]  Accordingly, the grand jury began to develop in a way designed to give the accused more process before the determination of their guilt.  During Edward III’s fourteenth century reign, the panel of twelve men was replaced by a group of twenty-four knights, called “le grande inquest,” which had the authority to begin a prosecution.  In capital cases, the original group of twelve men, now known as the petit jury, would then decide whether the accused were guilty or innocent.[8] 

            In the seventeenth century, English legal philosophers began interpreting the protections of the Magna Carta to require a grand jury in its modern form.  Edward Coke read the Magna Carta provision “Nullus liber homo capiatur, aut imprisonetur” to require submission to the “law of the land,” before life, liberty, or property could be taken from an individual, and William Blackstone interpreted “law of the land” to require a two-tier process safeguarding an accused person’s life.[9]  It was in this era that the grand jury as we know it emerged. The grand jury’s role was to decide whether there was probable cause of the suspect’s guilt.[10]   If the grand jury found probable cause, it would then be followed by the petit jury, which would decide to convict or acquit the accused based on the evidence.[11]  However, these additional procedural safeguards initially did little to protect the falsely accused, since the king continued to use fines and imprisonment to punish the jurors who chose not to convict the accused.[12]

            In response to the ineffectiveness of the petit jury as a safeguard of the rights of the accused, English grand juries began to take their duties more seriously and to refuse to proceed without the existence of probable cause.  The turning point of the English grand jury came in 1681, when Charles II attempted to indict two of his political opponents, the First Earl of Shaftesbury and Stephen Colledge, for treason after they fought against his plan to revert England to a Catholic nation.[13]  Although the King put strong pressure on the grand juries, the grand jury investigating Shaftesbury and Colledge refused to indict.[14]  Charles II then had the foreman of the grand jury arrested and sent to the Tower of London, and another grand jury in a more royalist location indicted Colledge, who was ultimately executed.[15]  Shaftesbury fled the country.[16]  However, the English public was impressed by the first grand jury’s protection of the dissidents, and began to look at the grand jury as a safeguard against unfair prosecution by the government.[17]  It was this period that the United States Supreme Court envisioned when it stated that the most valuable function of the ancient English grand jury was “not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.”[18]

The Grand Jury in America

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

--The Fifth Amendment to the United States Constitution

            The grand jury was imported to colonial America while it existed in its strongest English form, and as the Supreme Court has commented, “[t]here is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor.”[19]

            Indeed, the grand jury in the colonies initially functioned much as it did in England at the time.  As the colonies began to chafe under British rule, their grand juries served as a tool to express that frustration.  Colonial American juries refused to indict those accused of anti-British activity, for instance, the leaders of the Stamp Act riots.[20]  When open war broke out, citizens with royalist tendencies were disqualified from grand jury service.[21]  Furthermore, colonialists who believed in British rule were indicted by grand juries for treason.[22]  Considering the role the grand jury had played in the birth of America as an independent nation, it is unsurprising that the founders thought of it as a device that could provide security against an oppressive government, and chose to codify it as a fundamental protection in the Bill of Rights.  In fact, unlike many of the provisions included in the Bill of Rights, the clause guaranteeing a grand jury trial for infamous crimes caused no debate or objection.

            We can understand more about the founders’ intentions for the grand jury by looking at its placement in the Fifth Amendment.  It was conceived of and listed amongst and in the spirit of such other central protections of the accused as the prohibition of double jeopardy, the right to refuse criminal self-incrimination, and due process of law.  Furthermore, its very language makes clear that it is designed to provide an additional layer of process for those accused of the worst crimes, and thus in the greatest danger of losing their life or substantial liberty.  It is apparent that the grand jury, as it is enshrined in our Fifth Amendment, was designed as a protection of individual rights.

            However, it was not long before the power of the grand jury was hijacked by governmental officials seeking to advance their political agenda.  As the United States fractured into two political parties, each party, after its ascent to power, used grand juries as a tool against the other.  Under John Adams, a Federalist, grand juries were convened in strongly Federalist locations and, instructed by Federalist judges, indicted many Republicans under the new Alien-Sedition laws.[23]  Conversely, when Thomas Jefferson, a Republican, came into power, he tried on three separate occasions to have a grand jury indict Aaron Burr, his political opponent, for conspiracy to overthrow the government.[24]  The first two grand juries, located in the west, refused to indict Burr, but the third, which was convened in overwhelmingly Republican Virginia and packed with Republican jurors, indicted Burr for levying war upon the United States.[25]

            During the Civil War and its aftermath, grand juries continued to serve as means for political majorities to exert their will.  In the pre-war South, pro-slavery grand juries frequently indicted those who spoke out against slavery on charges of inciting slaves or of sedition.[26]  Southern grand juries also returned many indictments for harboring fugitive slaves and encouraging them or aiding them in their escapes.[27]  Conversely, in the pre-war North, grand juries refused to indict anti-slavery activists, even if it was clear that their actions had in fact violated a law (typically the Fugitive Slave Law of 1850).[28]  After the Civil War began, the Confederate States of America incorporated grand juries into its own government.[29]  Grand juries in both the North and the Confederacy were primarily concerned with charges of desertion and treason against their respective governments.[30]  After the conclusion of the war, the marked difference between the actions of state grand juries and federal grand juries convened in the South shows the extent to which their decisions were politicized.  Federal grand juries, under the control of the Reconstructionist North, included African American members and indicted those who interfered with the new African American right to vote.[31]  Though only the leaders of the Ku Klux Klan were actually tried in federal court, hundreds of Ku Klux Klan members were indicted by federal grand juries for their activities.[32]  Southern state grand juries, however, were used as a tool to rebel against the new Reconstructionist regime.  Southern states excluded African Americans from grand jury service, and refused to enforce the laws guaranteeing African American voting rights.[33]  Furthermore, Southern state grand juries frequently indicted Reconstructionist officials on false charges to interfere with their attempts to enforce new Northern Reconstructionist policy.[34]

            This use of the grand jury as a tool to stop opposition political movements continued as the Labor party began to win converts near the turn of the twentieth century.  During the height of the labor movement, grand juries indicted thousands of labor activists and organizers on false charges from unlawful assembly to murder.[35]  After a bomb was detonated, allegedly by police officers, during a large protest in Haymarket Square in support of the eight-hour work day, a local grand jury was convened to make the protestors pay.[36]  After the presiding judge instructed the grand jury members (already substantially biased by the public outcry resulting from the Haymarket incident) that “anarchism must be suppressed,” the grand jury returned indictments against thirty-one socialists and anarchists.[37]  A trial followed for eight of the most prominent activists of the labor movement, only two of whom had been in Haymarket Square when the bomb was detonated.[38]  Similar anti-labor uses of the grand jury occurred all throughout the country.  Large labor strikes were often followed by grand juries convened to indict strikers or the leaders of the strikes, indicting hundred of strikers for interfering with the United States mail or conspiracy to do the same.[39]  This only escalated during World War I, when the government developed an interest in suppressing the speech of anti-war activists.  Mass indictments by federal grand jury swept throughout the nation, indicting those who were accused of nothing but anti-war speech or association with an anti-war group.[40]  One Illinois grand jury indicted over one hundred members of the Industrial Workers of the World for sedition, espionage, and conspiracy to oppose the Selective Service Act.[41]  In 1918, Eugene V. Debs, the famous socialist leader and presidential candidate, was indicted by a federal grand jury for making an anti-war and pro-socialism speech.[42]  After this indictment, he was convicted and sentenced to a term of ten years in prison, where he ran his last presidential campaign.[43]

It was, however, with the advent of the Cold War that the government’s use of grand juries took a particularly disturbing turn.  Rather than simply considering the grand jury a tool to be used against designated targets, the government instead began to see the grand jury as a method for gathering information about activists and undesirable social movements.[44]  During the aftermath of World War II, fear of communism, and especially of hidden communists posing as loyal American citizens, surged throughout the United States.  Although the Red Scare government did use grand juries in a traditional manner to indict suspected communists, it also seized upon the new stratagem of using the grand jury as a way in which it could force suspected communists to reveal information about the rest of the movement.  In this way, prosecutors began to use grand juries not just to weigh evidence already uncovered, but also to dig for new evidence.  To do so, government prosecutors took full advantage of the subpoena power to force witnesses with potential evidence before grand juries, where they could be interrogated.  However, a substantial obstacle to investigative use of the grand jury was the was ability of witnesses to invoke the Fifth Amendment guarantee that “no person shall be compelled in any criminal case to be a witness against himself.”[45]

To eliminate the grounds on which a witness could refuse to testify, Congress passed a 1954 act to regulate witness testimony in matters of national security.[46]  Under the act, if the Attorney General chose to grant the witness transactional immunity, the Fifth Amendment right to avoid self-incrimination would no longer apply, and the witness would then be forced to testify.[47]  President Eisenhower described the act as “a means of breaking through the secrecy which is characteristic of traitors, spies and saboteurs.”[48]  Though the act was only used three times, this act marked the beginning of the increasingly-used strategy of forcing witnesses to testify against their will in order to get information about unpopular political movements.

The use of the grand jury to gather information about activists reached its peak during the Nixon administration.  From 1970 to 1973, more than one thousand activists were subpoenaed to testify before grand juries.[49]  The Internal Security Division, a section of the Justice Department, coordinated the use of grand juries to investigate and suppress the anti-Vietnam War movement, focusing on activist groups such as student organizations, the Weathermen, and the Catholic left.[50]  However, this time the investigative grand jury had a new tool: Title II of the Organized Crime Control Act of 1970, which compelled witnesses to testify in exchange for mere “use immunity.”[51]  In addition to gathering information, grand juries were also used to inconvenience and harass activists.  Many activists were subpoenaed to testify before grand juries in distant locations, and when they appeared, were asked nothing more than their name and address.[52]  The administration also used grand juries to cripple demonstrations and protests.  Leslie Bacon, an anti-war activist, was arrested in Washington, D.C. on a material witness warrant the day before a planned demonstration and flown to Seattle.[53]  In a similar incident, two dozen leaders of the group Vietnam Veterans Against the War were subpoenaed to testify before a Tallahassee grand jury on the same day that they had planned to attend a demonstration in Miami at the Democratic National Convention.[54]  Many of the subpoenaed veterans were asked no substantial questions at all, and others were held in contempt of court.[55]  It was during this time period that Senator Edward Kennedy commented that under the Nixon administration, “an administration bent on twisting law enforcement to serve its own political ends,” the grand jury had become a “kangaroo grand jury…a dangerous modern form of Star Chamber secret inquisition that [was] trampling the rights of American citizens from coast to coast.”[56]

In response to the government’s warped use of the grand jury to suppress activist movements, activists and their organizations began to coordinate a response to grand jury abuse.  The National Lawyers Guild formed a task force to coordinate a legal strategy for resisting the political grand jury.[57]  A variety of progressive groups joined together and created the National Coalition to End Grand Jury Abuse.[58]  In New York, the Grand Jury Project started to publish a newspaper called Quash that advocated grand jury resistance.[59]  The consensus that emerged among activists was that the best way to deal with a grand jury subpoena was refusing to answer questions, even when granted immunity or held in contempt of court.[60]  Activists began the policy of non-collaboration, refusing to answer any grand jury questions as a mater of principle.

Though a united refusal of activists to answer the questions of a politically motivated grand jury has, to some extent, reduced the efficacy of the grand jury as a investigative tool for gathering information about threatening movements, it has also given the government another method of impeding the movements and harming the activists.  Namely, prosecutors can now subpoena activists to testify before grand juries with the full knowledge that the activists will refuse to answer questions, and then have them convicted of contempt of court and imprisoned.  This has the dual effect of removing key activists from their movements and of intimidating other activists from outspoken advocacy of their own.  The government demonstrated this strategy in 1981, when it subpoenaed Maria Cueto, Ricardo Romero, Julio Rosado, Andre Rosado, and National Committee Against Grand Jury Repression chairperson Steven Guerra, all activists working toward the independence of Puerto Rico.[61]  These activists had been previously subpoenaed to testify before grand juries in 1977, but refused to testify.  Maria Cueto, when originally subpoenaed, had claimed that the government had no right to force her to reveal information about her work as a lay minister, and said that if she testified before a secret government inquisition, she would lose her community’s trust.[62]  She was jailed for civil contempt of court and released eleven months later only after a district court judge found that keeping her incarcerated would have no coercive effect because she was sincerely committed to her principle of refusing to testify before the grand jury.[63]  Andre Rosado, after his 1977 subpoena to testify before a different grand jury, also refused to testify, claiming that a grand jury had no right to investigate the Puerto Rican independence movement and that the government was attempting to disrupt his political work.[64]   He was jailed for civil contempt and served nine months in prison, until the life of the grand jury ended.[65]  Thus, in 1981, the government had no possible reason to believe that Maria Cueto, Andre Rosado, or the other activists would testify before a grand jury after they had already spent months in prison rather than testifying before a previous grand jury about the same political activity.  Instead, the government subpoenaed them with only the intention of disrupting their activism and jailing them again.[66]  However, these subpoenas were met with protest from large segments of the Puerto Rican community, Mexican community, and Episcopal Church.[67]  In response to the public clamor, the United States Attorney declined to prosecute the activists for contempt after they again refused to testify.  The government continued the subpoenas, but told the witnesses that their attorneys would be contacted if they were required for further proceedings.  Instead, nine months later, after a new United States Attorney took the post, all five witnesses were arrested at gunpoint by squads of FBI agents and charged with criminal contempt for their refusal to testify before the grand jury.[68]  After the arrests of the activists, the FBI issued a statement to the public, saying that it had now arrested the “last unincarcerated leadership of the FALN [Fuerzas Armadas de Liberacion Nacional, a secret organization devoted to Puerto Rican independence that had taken credit for bombings in the United States].”[69]  Though the activists were only charged with contempt for refusal to testify before a grand jury, in the media the government spoke as if the activists were being tried for crimes committed as members of the FALN.[70]  At trial, the jury found each defendant guilty of contempt for refusing to testify before a grand jury.[71]  However, during sentencing, the government accused the defendants of membership in FALN and asked the court to sentence the activists to fifteen years in prison.[72]  Though the court refused to accept the memorandum the government submitted arguing for the defendants’ relationship with FALN, the government released the memorandum to the press, making public its accusations of the activists’ FALN membership.[73] 

Thus, the grand jury has undergone a dramatic metamorphosis during the 250 years it has been used in America.  Though it was codified in our Bill of Rights as a safeguard for the rights of the accused, it has long since been co-opted by the government.  The grand jury, as it is now used, is a dangerous method for the government to chill the First Amendment rights of expression and association of dissidents and dangerous minorities.

The Extraordinary Powers of the Grand Jury

“A good prosecutor could get a grand jury to indict a ham sandwich.”

--Apocryphal wisdom

            The tendency of the United States government to use grand juries against unpopular activists is exacerbated by the grand jury’s unique mechanics.  As it exists now, the grand jury is a tool of enormous power unfettered by most of the traditional safeguards against abuse of governmental authority.

            Unlike most parts of the American judicial system, the federal grand jury is shrouded in secrecy.  Federal Rule of Civil Procedure 6(d)(1) provides that “[t]he following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.”  Notably absent from this list are a judge, the person under consideration, and attorneys representing either the suspect or the witness. 

Although grand jurors have the right to steer the course of a grand jury proceeding and demand that witnesses be brought in front of them, in practice they nearly always defer to the only person present with outside knowledge of the law and the case: the prosecuting attorney.  Federal grand juries return indictments in 99.9 percent of the cases brought before them.[74]  This “rubber-stamp” procedure is exacerbated by the extremely one-sided view prosecutors are allowed to present to grand juries.  Without the presence of a defense attorney or even a neutral judge, grand jury members are rarely exposed to evidence supporting the target’s claim of innocence, even if it exists.

            Furthermore, because the Supreme Court sees the grand jury as a simple pre-trial procedural safeguard, rather than a serious governmental tool with consequences of its own, it has repeatedly held that it is unnecessary for a grand jury to incorporate the protections to which a defendant would be entitled in a trial context.

The Court began to express its belief that grand juries need not follow traditional evidentiary rules in the 1956 case Costello v. United States.  In Costello, Frank Costello was indicted for a willful attempt to evade the payment of his income taxes.  The sole witnesses who testified before the grand jury were three government agents who, though they were aware of evidence against Costello, did not learn any of the evidence firsthand.  The Supreme Court took the case to answer one question: “May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?”[75]  In a brief opinion of only a few paragraphs, the majority found that the answer to that question was yes.[76]  Drawing on the history of the grand jury, the court found that the American grand jury was designed to function substantially like the English grand jury it was modeled after.  Just as the ancient English grand jury did, the American grand jury “has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.”[77]  Because the English grand jury was historically free of arcane restrictions on the jury’s ability to hear evidence, and because a decision on the quality or admissibility of evidence would essentially mandate a miniature pretrial before the pretrial grand jury, the Supreme Court found that “neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act.”[78]

In 1974, the Supreme Court took another large step on its path allowing unorthodox evidence to come before a grand jury.  In United States v. Calandra, the Court held that the exclusionary rule, which prohibits evidence that the government has gathered illegally from being considered by judge or jury during a trial, does not apply to grand juries.  The Court’s rationale in Calandra was very similar to its rationale in Costello.  Looking at the historical background of the grand jury, and considering grand jury indictments with a certain lack of seriousness, the majority explained that “[b]ecause the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial.”[79]  Thus, when it comes to grand juries, the government may not only reap the reward of information it has gained illegally, but it is given positive incentives to break the law in an attempt to gather additional information to use during grand jury proceedings.

            The string of cases allowing grand juries to indict based on evidence that would be unacceptable at a trial continued with the 1992 case United States v. Williams.  In Williams, the Court addressed whether a district court could dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury "substantial exculpatory evidence" in its possession.[80]  The Williams majority, written by Justice Scalia, was frank about how little constitutional protection the target of a grand jury receives.  “No doubt in view of the grand jury proceeding's status as other than a constituent element of a ‘criminal prosecution,’” the Court wrote, “we have said that certain constitutional protections afforded defendants in criminal proceedings have no application before that body. The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so.  We have twice suggested, though not held, that the Sixth Amendment right to counsel does not attach when an individual is summoned to appear before a grand jury, even if he is the subject of the investigation.  And although ‘the grand jury may not force a witness to answer questions in violation of [the Fifth Amendment’s] constitutional guarantee’ against self-incrimination, our cases suggest that an indictment obtained through the use of evidence previously obtained in violation of the privilege against self-incrimination ‘is nevertheless valid.’”[81]  The Williams court found that, in line with previous holdings, Williams was not entitled to have the significant evidence that weighed in his favor disclosed to his grand jury.  The Court justified the denial of these protections by stating that it “is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.  That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side.”[82]

            Thus, the grand jury as it stands now is an institution that is legally obligated to provide almost no guarantee of fairness to those it investigates.  The prosecutor may introduce hearsay and illegally-obtained evidence, all the while refusing to show the grand jury exculpatory evidence or let the target testify on his or her own behalf.

The Grand Jury’s Power Over Witnesses

            The government’s use of grand jury witness subpoenas to either coerce information from activists or imprison them is effective because grand jury witnesses, as well as grand jury targets, have very few statutory or constitutional protections.  The prosecutor is not required to demonstrate any relevance before subpoenaing a witness, making it easy to use the subpoena as a tool to disrupt the work of activists without a showing that they are likely to have any important information.  Furthermore, grand jury witnesses may not have an attorney with them in the room while they testify, although they may ask their attorney to remain outside and consult with him or her before responding to questions.

However, the largest unique problem for a witness is the decision to answer or refuse to answer questions.  Witnesses can be prosecuted in connection with any incriminating statements they make before the grand jury, so they are given the right by the Fifth Amendment to refuse to answer questions that might incriminate themselves.  However, because witnesses called before a grand jury often use their Fifth Amendment right not to incriminate themselves as a reason for refusing to answer all questions, the prosecutor may offer the witnesses immunity for their testimony, thus forcing them to testify.  The prosecutor may offer a witness either of two types of immunity: “transactional” immunity and “use” immunity.  Transactional immunity immunizes a witness from prosecution in connection with the incident about which she testifies.  Use immunity is less generous and immunizes a witness only from having her own testimony used against herself.  If a prosecutor subpoenas multiple people with information about the same incident and forces each of them to testify with use immunity, it is likely that collectively, they will all provide enough information to convict each of them with the testimony of the others.  Unsurprisingly, prosecutors prefer to employ use immunity, which forces witnesses to talk, but does not protect them from subsequent prosecution on the same matter.

If a grand jury witness refuses to testify, he or she will be subject to sanction for contempt of court.  Civil contempt of court is intended as a tool to compel future compliance with a court order.  Because it is coercive, rather than punitive, and avoidable through obedience, it “thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.”[83]  In cases of civil contempt for refusing to testify before a grand jury, the witness may be incarcerated for the remaining life of the grand jury investigation.  Criminal contempt of court, on the other hand, is intended to be punitive.  A witness found guilty of criminal contempt of court for refusing to testify before a grand jury may be sentenced to up to life in prison, although sentences of longer than six months require a jury trial.

The Rise of the Animal Rights Movement

“All animals are equal, but some animals are more equal than others.” 

--George Orwell, Animal Farm

            The animal rights movement is the most recent major movement that the government has targeted with the grand jury.  The animal rights movement is premised on the idea that non-human animals, as sentient creatures capable of thought and pain, are entitled to some minimum standard of consideration by humans.  Though there is variance among proponents of animal rights about the exact set of rights each animal deserves, generally these rights include at least the right to life and the right to be free from intentional human-inflicted pain.  Some animal rights advocates would extend the set of rights to include some measure of autonomy and freedom for animals to pursue their own desires, and others believe that any use of non-human animals by humans is unethical, as it treats them as means to achieve our desires rather than as ends unto themselves.

            The concept of an ethical obligation to refrain from killing animals dates back to antiquity.  Pythagoras is reputed to have refused to eat meat and shunned butchers and hunters, while, for thousands of years, many Jains, Hindus, and Buddhists have refused to kill animals on a principle of non-violence.  However, the belief that non-human animals are entitled to a basic set of rights first coalesced as a significant movement in the 1970s, spurred on by the 1975 publication of Peter Singer’s book Animal Liberation.  Animal Liberation argued that the utilitarian principle of the greatest good for the greatest number should be expanded to include the pain and pleasure of non-human animals as well as humans.  This idea was first notably expressed by the utilitarian philosopher Jeremy Bentham when he wrote: “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?”[84]  The position that harming and killing animals for human pleasure is wrong has become increasingly popular in the United States over the last several decades, especially among youth.  A 2008 study by Vegetarian Times found that there are approximately 7.3 million vegetarians in America, 42% of who are between the ages of 18 and 34.

The vast majority of animals in the United States are animals raised for food in enormous industrial structures, called “factory farms” because of the large amount of automation and small amount of human interaction involved in raising the animals.  Billions of animals are raised and slaughtered each year for the consumption of Americans.[85]  These animals live and die in conditions that would horrify most consumers, were they aware of them.  Most farm animals are confined to tiny spaces, too small for them to turn around or extend their wings, in unsanitary and overcrowded warehouses.  These animals, which are bred for maximum production of meat, are often subject to organ failure or other disease because of their unnatural size.  Ultimately, the animals are slaughtered in “assembly line” style after living only a fraction of their natural lives.

However, the law in the United States has not evolved to take animal interests into account.  Although the United States has some nominal laws forbidding cruelty to animals, in practice there is very little legal recourse for non-human animals or the activists who wish to defend them.  This is for two primary reasons.  First, the power and wealth of the animal agriculture industry has influenced politicians so that the laws written to regulate the treatment of animals are almost entirely without teeth.  Second, even when a specific law governing the treatment of animals has actually been violated, the problem of legal standing hinders animal rights advocates from being able to bring civil lawsuits on an animal’s behalf.

            Animal agriculture is one of the largest and richest industries in the country, and the industry is not shy to use its money to buy political influence.  In 2010, the dairy industry spent $5,655,885 on lobbying, the livestock industry spent $2,499,255, and the poultry and egg industry spent $672,610.[86]  Furthermore, in the 2010 election cycle, political action committees affiliated with the dairy industry contributed $2,414,465 to the campaigns of federal candidates.[87]  During the same cycle, the livestock industry donated $816,785 through political action committees and poultry and egg-related PACs donated $706,800.[88]

            Because of the strong influence of animal agriculture industries, most laws ostensibly designed to enforce the good treatment of animals are woefully inadequate to their purpose.  There is no federal law regulating the treatment of food animals before they are slaughtered, leaving all protection up to the discretion of the states.[89]  Though each state has its own anti-cruelty statute to govern the treatment of animals, twenty-five of the state anti-cruelty statutes include a provision stating that customary farming practices are exempted from the regulation.[90]  This means that in these states, any procedure carried out by enough factory farms, no matter how cruel and unnecessary, will not be a violation of anti-cruelty law.  This provision takes most of the bite out of these statutes, because any economically advantageous procedure is quickly adopted by most factory farms, even if it is incredibly harmful to the animals and provides only slight benefits to the farm.

            Even if the treatment of a particular animal is clearly in violation of a statutory standard, standing must be satisfied before a civil suit is allowed to proceed to adjudication on the merits. The problem of standing is one of the most pernicious obstacles stopping litigation from vindicating the legal rights of animals.  Standing is a legal doctrine designed to ensure that the party bringing civil litigation has a particular interest in the outcome of the suit.  To establish legal standing, a civil plaintiff must demonstrate (1) that he has suffered “injury in fact;” (2) that the injury is “fairly traceable” to the defendant's actions; and (3) that a favorable judicial ruling will “likely” redress the plaintiff's injury.[91]  This generally serves the beneficial purpose of strengthening the adversarial system by selecting parties who will litigate the opposing sides of the case with vigor, because their own interests are at stake.  However, because animals cannot have standing and civilly sue on their own behalf, in cases of animal mistreatment the standing requirement most often stops civil suits entirely.  Any human who wishes to sue on behalf of a mistreated animal must show that his or her personal interests are being harmed by defendant’s misconduct.  Courts have found that an animal rights activist’s emotional anguish over the unlawful treatment of animals is insufficient to create standing.  Thus, the only civil suits on behalf of animals with any chance of succeeding are the incredibly small set of cases in which a would-be plaintiff can establish that she has somehow suffered economic damages from defendant’s unlawful behavior, or that she has a special and particular bond with the animal in question. 

            The remaining possibility for legal enforcement of animal welfare is criminal suits based on the violation of anti-cruelty statutes.  However, these suits require the involvement of a government prosecutor.  Because prosecutorial offices have limited resources, they are generally reluctant to involve themselves in a case where the welfare of animals, rather than humans, is at stake.

            Therefore, animal rights activists are placed in a situation in which there is very little legal recourse for suffering animals.  The anti-cruelty laws of most states are diluted to the point where they allow significant actual cruelty to animals, particularly the animals in factory farms.  Even if an activist can find a violation of a law, she cannot bring suit on her own, for standing reasons, and interesting a government prosecutor is a difficult and usually futile task for all but the most egregious cases.

Illegal Tactics Used in Defense of Animals

"I see participating in the ALFs raids not as a momentary forfeiture of the highest human values - goodness, generosity and the like - but rather as an embodiment of them... We feel a sense of urgency for the animals whose pain and imminent death is absolutely real to them today."

--Anonymous Animal Liberation Front member

Because legal help is generally unavailable for mistreated animals due to the confluence of arbitrary and cruelty-enabling laws, the inability of concerned activists to sue civilly, and the governmental indifference to bringing criminal prosecutions, some animal rights activists have turned to illegal action on behalf of animals.  Illegal action is often called “direct action” by the activists who engage in it because it has the immediate effect of rescuing individual animals or of slowing down animal enterprises and reducing the rate at which they can harm animals.  Generally, direct action will refer to either rescuing animals from factory farms, laboratories, or other places of abuse, or inflicting economic damage on an organization that mistreats animals.

The practice of taking direct action to obstruct animal-harming activities began in 1960s England.  At this time, a group called the Hunt Saboteurs Association began to interfere with hunting events by laying false scents, blowing hunting horns to send hounds off in the wrong direction, and chasing animals to safety.[92]  In 1972, some members of the Hunt Saboteurs Association felt that stronger direct action was necessary and formed the Band of Mercy, which destroyed guns and broke the windows and slashed the tires of hunters’ vehicles.[93]  The Band of Mercy also began taking action against other animal enterprises, including burning seal hunting boats and pharmaceutical laboratories.[94]  When two Band of Mercy members were imprisoned in 1975, their cause was popularized, leading to the 1976 founding of the Animal Liberation Front.

The Animal Liberation Front, or ALF, is one of the most prominent organizations supporting direct action today.  As expressed in the ALF Credo, “The ALF's short-term aim is to save as many animals as possible and directly disrupt the practice of animal abuse. Their long term aim is to end all animal suffering by forcing animal abuse companies out of business.”  Because ALF activities are by their nature illegal, “activists work anonymously, and there is no formal organization to the ALF. There is no office, no leaders, no newsletter, and no official membership. Anyone who carries out direct action according to ALF guidelines is a member of the ALF.”[95]  A primer by the Animal Liberation Front describes the three purposes of animal liberators: “(1) To liberate animals from places of abuse…and place them in good homes where they can live out their natural lives free from suffering; (2) to inflict economic damage upon those who profit from the misery and exploitation of animals; and, (3) to reveal the horror and atrocities committed against animals behind locked doors by performing non-violent direct actions and liberations.”[96]

Though members of the Animal Liberation Front acknowledge that they are committing illegal activities, they consider their actions to be morally correct and noble.  As the ALF Primer states, “[m]embers of the Animal Liberation Front act directly to stop animal suffering, at the risk of losing their own freedom.”  Because most animal liberationists are driven by the principle that violence against living things is wrong, direct action is typically carried out with extreme care to avoid harming any humans.  ALF requires that its members “take all necessary precautions against hurting any animal, human and non-human,” and notes that “in over 20 years, and thousands of actions, nobody has ever been injured or killed in an ALF action.”[97]

Governmental Response to Animal Rights Advocacy

Though many advocates of animal liberation see direct action as nonviolent civil disobedience, the United States government sees it as terrorism.  In 2005, the Department of Homeland Security included the Animal Liberation Front in a list of “domestic terrorist threats.”  John Lewis, an FBI top official in charge of domestic terrorism, stated that “the No. 1 domestic terrorism threat is the eco-terrorism, animal-rights movement.”[98]  Though the FBI justified its stance through statistics about what groups had made the most frequent attacks, many scholars believed that it was ridiculous to put a movement whose claimed attacks had never been responsible for a single death at the top of the domestic terrorism list.  Mark Potok of the Southern Policy Law Center commented that political pressure from the White House and conservative Republicans, who were hostile to environmental movement, was a large part of the reason eco-terrorism had become the top priority.[99]

            However, the strong government response to direct action in favor of animal rights began earlier.  In 1992, Congress passed the Animal Enterprise Protection Act, designed to stop animal activists from economically damaging factory farms, animal testing facilities, and other commercial interests that profit from the ill-treatment of animals.  It provided that whoever:

(1) travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and

(2) intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.[100]

             The act also included a provision for restitution, so that an activist who successfully interrupted a commercial activity could be ordered to pay “for the reasonable cost of repeating any experimentation that was interrupted or invalidated as a result of the offense,” or for “the loss of food production or farm income reasonably attributable to the offense.”[101]

             Though the Animal Enterprise Protection Act seemed on its face only to target those who committed physical acts of sabotage, its inaugural use showed that the government had other targets in mind.  The first people tried under the Animal Enterprise Protection Act were the SHAC 7, a group of six animal rights activists and the organization Stop Huntingdon Animal Cruelty USA, devoted to closing Huntingdon Life Sciences, an enormous animal-testing laboratory.  Huntingdon Life Sciences operates three facilities, two in England and one in New Jersey, at which an average of five hundred animals are killed each day in tests of chemicals and products such as Splenda, Viagra, Olestra, pesticides, diet pills, and genetically modified organisms.[102]  The SHAC 7 were all charged with conspiracy to violate the Animal Enterprise Protection Act, not for direct illegal action against Huntingdon Life Sciences, but for their speech.  Specifically, the SHAC 7 operated a website that published information and news about actions being taken against Huntingdon Life Sciences.  The website included information about both legal and illegal actions, supporting both varieties.  With regard to direct action, the SHAC website stated that “[w]e operate within the boundaries of the law, but

recognize and support those who choose to operate outside the confines of the legal system…SHAC does not organize any such actions or have any knowledge of who is doing them or when they will happen, but [SHAC] encourage[s] people to support direct action when it happens and those who may participate in it.”[103]  Additionally, the SHAC website included information about upcoming electronic civil disobedience (e.g. attempts to flood the websites, e-mail servers, and telephone lines of Huntingdon Life Science or associated companies with a barrage of users).  Furthermore, the SHAC website included the addresses and telephone numbers of Huntingdon Life Sciences employees and the employees of associated companies.  Because the speech of SHAC and the activists was intended to disrupt the functioning of an animal enterprise, and because their speech advocated illegal action, the court found all of them guilty of conspiracy.  Though the SHAC 7 argued that their actions were protected by the First Amendment, the court found that the Animal Enterprise Protection Act was constitutional both on its face and as applied to the SHAC 7.  This was a decision that significantly curtailed the First Amendment protection that animal rights activists could expect.  Traditionally, political speech is given the very highest First Amendment protection.  Even speech that openly advocates illegal action is subject to a demanding test before the government may regulate it.  The standard, set out in the 1969 case Brandenburg v. Ohio, holds that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[104]  The Brandenburg court also stated that “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”[105]  While the Third Circuit Court of Appeals found that some of the speech on the SHAC website was protected under the Brandenburg test, some of the speech constituted “true threats,” which are not protected under the First Amendment.  What was missing from this argument was a direct link between any of the individual defendants and the speech alleged to be true threats.  Instead, the “[t]he government's case lasted two weeks and consisted of parading a long list of witnesses up on the stand to testify about protest activity they had been subjected to. While none could identify any of the defendants as engaging in any criminal acts against them, many did testify about the criminal acts of others. The judge allowed people like HLS Director Brian Cass (who based in the United Kingdom) to testify about the campaign in England, an attack on him in England, and the benefits of animal research, despite the fact that he had nothing to say about the defendants in the case.”[106]  Furthermore, as Judge Fisher noted in his dissent, “at the time the Defendants were prosecuted, the AEPA did not criminalize harassment of employees of an animal enterprise or employees of companies affiliated with an animal enterprise.”[107]  To prove a conspiracy to violate the AEPA, “the Government needed to demonstrate that the Defendants formed an agreement to ‘cause[] physical disruption to the functioning of an animal enterprise’ and to ‘damage[] or cause[] the loss of any property . . . used by the animal enterprise,’ and that each Defendant had the specific

intent to further this agreement.”[108]  Judge Fisher believed that “[w]hile the Government’s evidence tended to prove that the Defendants conspired together to put economic pressure on Huntingdon to close its facilities by targeting companies that did business with Huntingdon, as well as their employees, and furthered this goal through a campaign of intimidation and harassment, the Government’s evidence did not prove an agreement to cause physical disruption to Huntingdon and damage to property it used.”[109]  Nonetheless, in 2009 the Third Circuit affirmed all counts and convictions against all defendants, including the $1,000,001 they were jointly ordered to pay in restitution.  The Supreme Court has declined to hear the case.

            The power of the Animal Enterprise Protection Act was only increased in 2006, when Congress amended it by passing the Animal Enterprise Terrorism Act.  The Animal Enterprise Terrorism Act expanded the reach of the Animal Enterprise Protection Act, broadening the definition of “animal enterprise” and increasing the maximum penalties for violating the act.  Furthermore, the Animal Enterprise Terrorism Act, unlike the Animal Enterprise Protection Act, criminalizes actions that create a “reasonable fear” in employees of an animal enterprise.  The Animal Enterprise Terrorism Act, or AETA, was rushed through the Senate by unanimous consent only hours before the November Congressional recess; on the first day back after the recess, it passed the House through a procedure called “suspension of the rules” designed for uncontroversial bills.[110]  Only six representatives were present on the floor at the time the AETA passed the House.  Dennis Kucinich, the only congressperson who spoke out against the passage of the bill (though he left the room before the bill passed, rather than demanding a roll call vote), stated that it was “written in such a way as to have a chilling effect on the exercise of the constitutional rights of protest...people who, the law says, well, their first amendment rights are protected.”

            Unsurprisingly, the first people charged under the Animal Enterprise Terrorism Act—Joseph Buddenburg, Maryam Khajavi, Nathan Pope, and Adriana Stump, known as the “AETA 4”—were charged with conspiracy to violate the Animal Enterprise Terrorism Act because of their because of their First Amendment-protected expression and association rather than any criminal acts against animal enterprises.  In the AETA 4’s indictment for conspiracy, the only facts listed by the government as justification for the conspiracy charged stemmed from three acts: two protests in front of the homes of people who conducted research on animals, and the use of “the Internet to find information on bio-medical researchers at the University of California at Santa Cruz.”[111]  The first protest, which the government said involved “threats, criminal trespass, harassment, and intimidation,” is summarized in the criminal complaint, which states that “protesters trespassed onto Professor Number One’s front yard and rang his doorbell several times. The group was making a lot of noise and chanting animal rights slogans (‘1, 2, 3, 4 open up the cage door; 5, 6, 7, 8, smash the locks and liberate; 9, 10, 11, 12, vivisectors go to hell’)…”[112]  The second protest, which the government alleged amounted to “threats, harassment, and intimidation,” as described in the criminal complaint amounted to about eleven people protesting outside the houses of multiple bio-medical researchers.[113]  “At each residence, the individuals, dressed generally in all black clothing and wearing bandanas over their nose and mouth, marched, chanted, and chalked defamatory comments on the public sidewalks…”[114]  In July of 2010, Ronald M. Whyte, a northern California district court judge, ordered that the AETA 4’s indictments be dismissed without prejudice “on the basis that the indictment fail[ed] to allege the facts of the crimes charged with sufficient specificity.”[115]  Judge Whyte wrote that “[i]n order for an

indictment to fulfill its constitutional purposes, it must allege facts that sufficiently inform each defendant of what it is that he or she is alleged to have done that constitutes a crime. This is particularly important where the species of behavior in question spans a wide spectrum from criminal conduct to constitutionally protected political protest. While "true threats" enjoy no First Amendment protection, picketing and political protest are at the very core of what is protected by the First Amendment. Where the defendants' conduct falls on this spectrum in this case will very likely ultimately be decided by a jury…Before this case proceeds to a jury, however, the defendants are entitled to a more

specific indictment setting forth their conduct alleged to be criminal.”[116]

            While the Animal Enterprise Terrorism Act is ostensibly designed to apply only to the extremist “terrorists” taking direct action against animal enterprises, a new governmental response is straightforwardly aimed at halting the animal rights movement as a whole by stopping the flow of information about what really takes place in factory farms.  Several state legislatures have begun to pass laws prohibiting people from photographing, videotaping, or making audio recordings on farms without the consent of the owner.  These laws, often called “ag gag” laws because of their attempt to gag speech about agricultural enterprises, have been recently considered in Iowa, Minnesota, Florida, and New York.  Representatives of animal enterprises acknowledge that the purpose of these laws is to stop the dissemination of the covert videos documenting mistreatment of animal that are such strong tools of the animal rights movement.  Cody McKinley, a public policy director for the Iowa Pork Producers Association commented that he doesn’t “believe in people being hired under false pretenses to get access to these facilities to portray their side of the story.”  Bruce Berven, a lobbyist for the Iowa Cattlemen’s Association, stated that those taking videos of factory farms had an “anti-livestock” agenda and are “basically just using this issue to promote their vegan-slash-vegetarian agenda. There’s a bigger war going on than this issue.”

Grand Juries Used Against Animal Rights Activists

With the rise of the “Green Scare,” it is no surprise that the United States government has turned its traditional anti-activist tool, the grand jury, against the animal rights movement.  Between the late 1980s and 1994, nine or ten federal grand juries were impaneled in Washington, Oregon, Utah, Michigan, and Louisiana to investigate direct action.[117]  Dozens of animal rights activists have been subpoenaed to testify before these grand juries.

Debra Ann Young and Henry Hutto were jailed for their refusal to cooperate with a grand jury investigating a 1987 arson directed against the Animal Diagnostic Laboratory being built at the University of California, Davis.[118]  Debra Ann Young was imprisoned for two days when she refused to name her associates in the animal rights movement, but was released from prison after she agreed to cooperate with the grand jury investigation.[119]  During her time in jail, Debra Ann Young was allegedly denied access to her attorney, as well as the prescription medication she used to maintain her blood pressure.[120]  Henry Hutto was kept in jail for forty-five days, where he was placed in solitary confinement and lost approximately twenty pounds because, as a vegan, he could not eat most of the food given to him.[121]

Four more animal rights activists were imprisoned for contempt of court when they refused to testify before a grand jury investigating a 1991 Animal Liberation Front raid on the Washington State University Fur Animal Research Farm.[122]  Jonathan Paul, who was not a suspect in the raid, was imprisoned for 156 days for his refusal to identify other activists in photographs.[123]  His testimony was sought primarily because he was the friend and former roommate of Rodney Coronado, the leading suspect in the investigation.[124]  Deborah Stout and Kimberly Jean Trimiew, who were suspects in the raid, were incarcerated for five months for their refusal to cooperate with the grand jury.[125]  Most notably, author Rik Scarce was imprisoned for 159 days because he refused to reveal the sources for his book “Eco-Warriors.”[126]  Though Rik Scarce argued that, under the First Amendment, a scholarly privilege protected the names of his confidential sources, the Ninth Circuit Court of Appeals found that the public interest in ensuring effective grand jury proceedings trumped the burden placed on news gathering by forcing reporters respond to grand jury questions.[127]  Ultimately, all the grand jury investigations into the Washington State University raid produced only one conviction.[128]  In 1995, Rodney Coronado pled guilty to aiding and abetting a separate Animal Liberation Front action at Michigan State University, as well as an unrelated incident of theft.  His plea may have been mostly attributable to the separate theft; as Ken Olsen wrote for the Moscow-Pullman Daily News: “In the end, it appears that Coronado’s impulsive theft of a soldier’s diary from the Little Bighorn Battlefield Museum, not evidence from animal rights cases, gave the government the leverage it needed to get him to take a pela bargain…Coronado faced 10 years in prison on that charge alone, a charge he would have likely been convicted on.”[129]  Rodney Coronado was sentenced to fifty-seven months in prison and ordered to pay 2.5 million dollars in restitution to businesses damaged by animal rights activists.

Jordan Halliday

            The use of the grand jury against animal rights activists has become increasingly frequent in recent years.  Jordan Halliday, a Salt Lake City-area activist, is a recent animal rights advocate to serve time in jail for his refusal to testify before a grand jury.[130]  Though Jordan has been actively involved in animal rights activism, as well as activism in support of human rights, environmentalism, LGBT rights, women’s rights, anarchism, and racial equality, other than his experiences with the grand jury, the only crimes he has ever been charged with were targeted residential picketing and “wearing a mask with the intent to commit a crime,” both in connection with his public demonstration outside a vivisector’s house in March 2008.[131]

Jordan’s involvement with the grand jury began in September 2008 when two FBI agents came to his workplace to question him.[132]  Jordan immediately asked if he was being arrested or detained, but the agents declined to answer.  Jordan then told the agents that he wanted to speak to his lawyer.[133]  He attempted to call his lawyer but reached only his lawyer’s voicemail.  After this, Jordan told the agents he had nothing to say to them. They left, telling him that if he refused to talk, he would be subpoenaed to testify before a grand jury.  Several months later, in early 2009, the agents returned.  When Jordan refused to acknowledge them, they dropped a paper on the table and told him that he was being subpoenaed to testify in front of a grand jury.[134]  At the time, Jordan had “no idea” why the FBI was interested in him, since he had not been involved in any illegal activities.[135]

Jordan’s experience with the grand jury itself was no more pleasant.  Jordan was subpoenaed to testify before a grand jury three separate times in connection with the same investigation.  When Jordan initially walked into the grand jury room, he was “scared out of [his] mind.”[136]  However, he refused to answer any questions because his subpoena was improperly filled out, and therefore service was deficient.[137]  Jordan filed a pro se motion accordingly.[138]  He was then re-subpoenaed at his workplace by between five and seven FBI agents and the Deputy United States Marshall.[139]  Once in front of the grand jury again, Jordan continued to refuse to answer any questions, because he believes that grand juries are “archaic and old-fashioned, and that they are now mostly used illegally to gather information and intelligence in activist communities.”[140]  At this time Jordan attempted to assert his Fifth Amendment right not to testify; however, the privilege was not recognized.[141]  A week later, Jordan appeared at a hearing for contempt of court; he was arrested and placed in jail for contempt.[142]  It was only after Jordan was incarcerated that the prosecutor offered him immunity for his testimony before the grand jury.[143]  The third time that Jordan appeared before a grand jury, he asked to speak with his lawyer.[144]  The prosecutor repeatedly refused to let Jordan consult with his lawyer before eventually allowing him to do so.[145]  Jordan and his attorney spoke for about five minutes, but the federal marshals took about half an hour to return Jordan to the grand jury room.[146]  The prosecutor then asked Jordan another question, and Jordan again asked to talk to his lawyer.[147]  The prosecutor again refused, but ultimately acquiesced after Jordan’s repeated demands.[148]  However, after Jordan left the grand jury room, the federal marshals would not take him to see his lawyer, because it would have required escorting Jordan into an elevator and taking him to a room in the basement of the courthouse.[149]  After five minutes, the prosecutor came into the hall and told the marshals not to bother.[150]  Instead, they took Jordan back to jail.[151]

            The correction officers at Cache County Jail, where Jordan was incarcerated, initially refused to provide him with vegan meals.[152]  They only began to give Jordan any vegan food at all after he had gone without eating for almost a week and a flood of Jordan’s supporters called the jail demanding that they feed him.[153]  Even then, the Cache County correctional officers gave Jordan only unflavored beans for nearly every meal, including breakfast.[154] 

While Jordan was in jail, he attended hearings on his “Grumbles motion,” asserting that his incarceration had become punitive rather than coercive.  Although Jordan presented significant evidence that he would continue his refusal to testify no matter how long he was kept in jail, the judge ruled against him.[155]  The judge reasoned that because Jordan’s internet records showed that he had researched grand juries upon receiving his subpoena, and knew of the Grumbles motion, Jordan knew before his grand jury appearances that he might be freed from jail on a Grumbles motion if he refused to testify.[156]  Therefore, the government would not have exercised its full coercive power until Jordan knew that his Grumbles motion would not free him.  After spending nearly four months in jail, Jordan was released on June 29, 2009.[157]  The grand jury he was subpoenaed to testify before ended on June 30.[158]

However, upon release, Jordan was immediately charged with criminal contempt of court.  Jordan submitted a plea of guilty in July 2010.[159]  On November 3, 2010, Jordan was sentenced to an additional ten months of incarceration for criminal contempt.  It was only at his sentencing hearing that Jordan first learned the reason that the government had originally subpoenaed him to testify.[160]  During sentencing, the prosecution alleged that Jordan had released an e-mail to a news organization about a mink farm raid, hours before the police or farm itself knew that the raid had occurred.[161]  Upon reviewing his materials from discovery, Jordan realized that the alleged communication was a comment form filled out on the KUTV news website.  On the comment form, “NAME” was filled out as “Jordan,” “EMAIL” was filled out as “Jo~dan@aol.com”, and the fields for city and telephone number were left blank.  The message left in the comment field was: “The animal liberation front liberated 300 mink from the mcmullin mink farm. Monday Night/Tuesday morning. It is located just off of 1540 wand [sic] 10400 s. I head [sic] these rumors and went around that area and there are mink running around inthe [sic] fields. They look a lot happier”.  Upon receipt of this comment, KUTV News forwarded it to Lindsey McMullin, the owner of the McMullin Mink Farm, who in turn forwarded it to Teresa Platt of the Fur Commission USA.  Ms. Platt then forwarded it to the FBI.  This message, containing no admission of criminal guilt, an invalid e-mail address, and an unverifiable first name, was the reason that the FBI targeted Jordan Halliday, who has never had any knowledge of illegal underground animal liberation activities.[162]  If Jordan serves all ten months to which he has been sentenced for criminal contempt, he will have spent a total fourteen months in jail for his refusal to testify before a grand jury, more time than one of the people convicted for releasing the mink, and slightly less than the other.[163]

Carrie Feldman and Scott DeMuth

“Our willingness to cooperate and to be complacent, our willingness to be intimidated and to be scared, not only serves to legitimize these proceedings, but it also empowers the tactics of state repression.  However, when we as individuals, with the strength and backing of our communities, are no longer afraid of their punishment, choose to resist this process and refuse to cooperate, we dis-empower this tactic and give strength to our communities.”

--Scott DeMuth

            Carrie Feldman and Scott Demuth are another pair of animal rights activists who have been incarcerated for their refusal to testify before a grand jury.  It is probable that the subject to of the grand jury’s investigation was an action of the Animal Liberation Front that took place at the University of Iowa in 2004.  At the time the action took place, Carrie was fifteen years old, Scott was seventeen, and both of them were living in Minnesota.  Carrie and Scott were subpoenaed to testify five years later, in late 2009.

Carrie was served with her subpoena in Minnesota, just after leaving her house at around five in the evening.[164]  She had traveled about two or three blocks when she pulled over by a black S.U.V.  Two FBI agents emerged from the vehicle, confirmed Carrie’s identity, handed her the subpoena, and told her that she would have to appear before a grand jury in Iowa on Thursday.[165]  Carrie was incredulous that she had to appear in Iowa with less than two days’ notice, but the FBI agents merely told her to contact the victim/witness coordinator listen on the subpoena.[166] 

            During the grand jury investigation, Carrie refused to answer any questions other than stating her name and where she was from.[167]  When asked where she was born, Carrie invoked the Fifth Amendment and read a statement announcing that she was not going to cooperate.[168]  After that, the prosecutor asked her questions only about her refusal to cooperate.[169]  The only questions asked of Carrie that did not center around her refusal to cooperate were the prosecutor’s question whether she had posted the subpoena online, and a grand juror’s question whether Carrie had ever been a student at the University of Iowa.

            To sidestep Carrie’s use of the Fifth Amendment, the prosecutor filed to grand Carrie immunity and then subpoenaed her to make a second appearance before the grand jury on November 17, 2009.   However, this did not affect Carrie’s choice to refuse to testify.  As Carrie stated: “The prosecutor has filed to grand me immunity.  I do not need immunity from prosecution for a crime that I was not involved in and have no relation to.  This will not change my decision to refuse to cooperate with the grand jury.  I stand here in solidarity with everyone who has stood up to resist the exploitation of the environment and animals, the repression of the state, and the abuses of the justice system.”[170]  Scott DeMuth was subpoenaed to testify before the same grand jury as Carrie Feldman.  The government was well-aware that neither Scott nor Carrie intended to testify, and the court prepared to hold contempt hearings the same day.  On November 17, 2009, both Carrie and Scott refused to testify and were held in civil contempt of court, handcuffed, and incarcerated.  Carrie commented:

In anticipation of my refusal to cooperate, the court has scheduled a contempt hearing for today at ten o’clock.  And they’re right.  I do feel contempt for a justice system that prosecutes people for property damage that is done in defense of life, while real violence is committed at the hands of vivisectors, the police, and the military on a daily basis.  I feel contempt for the federal agents that would use these prosecutions as a pretext to investigate above ground movements and activists like me, with no apparent grounds other than my political beliefs and legal activities.  I will not help them to do this, and I will not let them violate my rights and privacy.”[171]

Because of her refusal to testify, Carrie was imprisoned in Iowa for four months.  On March 19, 2010, she was released with little explanation.[172]

            Scott DeMuth was not so lucky.  In addition to being imprisoned for civil contempt of court, he was also indicted for conspiracy under the Animal Enterprise Terrorism Act on November 18, 2009.[173]   At Scott’s pretrial hearings, the prosecutorial arguments centered around his political beliefs, such as his support for other political prisoners and the fact that he was “an anarchist and therefore a domestic terrorist.”[174]  Though Scott challenged the vagueness of his indictment, it was superceded by two further indictments issued in February and April of 2010.[175]  The second indictment was substantially similar to the first, but the third indictment included a new allegation of Scott’s involvement in an Animal Liberation Front action that occurred in Minnesota in 2006.[176]  Scott ultimately decided to accept the government’s plea agreement, requiring him to plead guilty to the Minnesota offense, in return for which the government would ask for a six month sentence but no fine.[177]  On Monday, September 13, 2010, Scott DeMuth pled guilty to one count of misdemeanor conspiracy to commit animal enterprise terrorism under the Animal Enterprise Protection Act.[178]  On February 14, 2011, Scott was sentenced to six months in prison and immediately taken into custody.  He is currently incarcerated in a Michigan federal correctional institution and has a projected release date of July 30.

Conclusion

            The grand jury, as it stands today, is an institution in need of reform.  Though included in the Bill of Rights as device for protecting the rights of defendants, it has become an investigative tool used frequently by the government in “fishing” attempts to gather information on information on political activists.  The reach of the grand jury is only extended when it is coupled with laws like the Animal Enterprise Terrorism Act, which allow the government to charge activists for terrorist “conspiracy” when they engage in expressive conduct like protesting or operating a website.  In these situations, the government may essentially subpoena any activist it wishes and demand information about that activist’s, or any other activist’s, conduct, speech, or association, with no showing that such information is likely to be relevant to the investigation at hand.  Subject to such a subpoena, the activist must either assist the government in its attempt to gather information about and ultimately harm his or her own movement, or be subject to a lengthy prison sentence for civil or criminal contempt of court.  Either outcome serves the government’s purpose and exerts a significant chilling effect on activists’ First Amendment rights of expression and association.

            Because the Supreme Court has already taken a firm stance that more procedural safeguards ensuring unbiased grand juries are constitutionally unnecessary, the judicial system is unlikely to play a significant role in grand jury reform.  Instead, the legislature should amend the Federal Rules of Criminal Procedure to include greater protections for grand jury witnesses and targets.

            The National Association of Criminal Defense Lawyers suggests that federal grand juries should be governed by the following “Bill of Rights”:

1. A witness before the grand jury who has not received immunity shall have the right to be accompanied by counsel in his or her appearance before the grand jury. Such counsel shall be allowed to be present in the grand jury room only during the questioning of the witness and shall be allowed to advise the witness. Such counsel shall not be permitted to address the grand jurors, stop the proceedings, object to questions, stop the witness from answering a question, nor otherwise take an active part in proceedings before the grand jury. The court shall have the power to remove from the grand jury room, or otherwise sanction counsel for conduct inconsistent with this principle.
2. No prosecutor shall knowingly fail to disclose to the federal grand jury evidence in the prosecutor’s possession which exonerates the target or subject of the offense. Such disclosure obligations shall not include an obligation to disclose matters that affect credibility such as prior inconsistent statements or Giglio materials.
3. The prosecutor shall not present to the federal grand jury evidence which he or she knows to be constitutionally inadmissible at trial because of a court ruling on the matter.
4. A target or subject of a grand jury investigation shall have the right to testify before the grand jury. Prosecutors shall notify such targets or subjects of their opportunity to testify, unless notification may result in flight, endanger other persons or obstruct justice, or unless the prosecutor is unable to notify said persons with reasonable diligence. A target or subject of the grand jury may also submit to the court, to be made available to the foreperson, an offer, in writing, to provide information or evidence to the grand jury.
5. Witnesses should have the right to receive a transcript of their federal grand jury testimony.
6. The federal grand jury shall not name a person in an indictment as an unindicted co-conspirator to a criminal conspiracy. Nothing herein shall prevent the prosecutor from supplying such names in a bill of particulars.
7. All non- immunized subjects or targets called before a federal grand jury shall be given a Miranda warning by the prosecutor before being questioned.
8. All subpoenas for witnesses called before a federal grand jury shall be issued at least 72 hours before the date of appearance, not to include weekends and holidays, unless good cause is shown for an exemption.
9. The federal grand jurors shall be given meaningful jury instructions, on the record, regarding their duties and powers as grand jurors, and the charges they are to consider. All instructions, recommendations and commentary to grand jurors by the prosecution shall be recorded and shall be made available to the accused after an indictment, during pre-trial discovery, and the court shall have discretion to dismiss an indictment, with or without prejudice, in the event of prosecutorial impropriety reflected in the transcript.
10. No prosecutor shall call before the federal grand jury any subject or target who has stated personally or through his attorney that he intends to invoke the constitutional privilege against self-incrimination.

            Several states, including New York and Massachusetts, have instituted some of these changes to their grand jury procedures to protect citizens from governmental abuse.[179]  (Many more states have abandoned the grand jury altogether.)  These changes would cure many of the procedural problems with the grand jury—constitutionally infirm or one-sided evidence; ignorant, frightened, and unprepared witnesses—but would leave intact the substantial problem of grand juries used as an information-gathering tool on political movements.

            A reform to address this problem is suggested by Michael Deutsch in his article on the improper use of the grand jury against activists.[180]  Deutsch believes that the government should recognize a “political right to silence” growing out of the First Amendment right to political freedom and the Fifth Amendment right privilege against self-incrimination.[181]  In accordance with this political right to silence, the government should not be able to force political activists to choose between providing the government with political intelligence about their movement or going to prison.[182]  Therefore, if a witness makes a colorable claim that he or she is part of a political organization or movement, and if the testimony sought concerns their political associations or the activities of others within the movement, the government should not be allowed to compel that witness’s testimony.[183]

            Although this reform initially seems as though it might deprive the government of a tool it needs for guarding against attacks by radical political groups, this rationale crumbles when exposed to scrutiny.  First, there is no historical or constitutional “right” of the government to use the grand jury as an investigative tool.  Neither the original American grand jury nor the English grand jury after which it was modeled were envisioned as a device for gathering information.  Rather, for hundreds of years, the grand jury was used only to issue indictments based on currently-known information.  It was only during the anti-Communist “Red Scare” of the Cold War that the government discovered the possibility of utilizing the grand jury as investigative tool.  Congress has rejected assigning the power of investigative subpoena to the FBI or the Justice Department attorneys, and there is no reason to allow these organizations to assign this power to themselves through the historically unanticipated investigative use of grand juries.[184]  Furthermore, this reform would have little practical effect on governmental investigation, as the political activists whom they wish to interrogate are driven by principle and rarely submit to government coercion even when threatened with or sentenced to jail time for their refusal to cooperate with a grand jury.  Allowing political activists the right to refuse to testify about their movements would not significantly decrease the information available to the government; it would only stop these activists from serving lengthy prison sentences for their beliefs.

            Ultimately, the cure for governmental abuse of the grand jury against animal rights activists lies in a better public understanding of both the grand jury and the animal rights movement.  While the public does not understand the historical background and constitutional purpose of the grand jury, it will not comprehend how the government is manipulating the system to incarcerate animal rights activists; while the public does not understand the justification and non-violent principles of the government-labeled animal rights “terrorists,” it will not care.  However, like the First Amendment itself, grand jury reform to protect the associational rights of activists is necessary to a society in which political dissent cannot be arbitrarily punished by a powerful government.

---

[1] Kadish, Mark.  “Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process.”  24 Fla. St. U.L. Rev. 1, 5  Fall, 1996

[2] Id. at 6

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 7

[7] Id.

[8] Id.

[9] Id. at 9

[10] Id.

[11] Id.

[12] Id.

[13] Hafetz, Frederick and Pellettieri, John, "Time to Reform the Grand Jury," Champion Magazine, January/February 1999, page 12

[14] Id.

[15] Id.

[16] Deutsch, Michael E.  “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists.”  75 J. Crim. L. & Criminology 1159. Winter, 1984 at 1164

[17] Hafetz, Frederick and Pellettieri, John, "Time to Reform the Grand Jury," Champion Magazine, January/February 1999, page 12

[18] Hale v. Henkel, 201 U.S. 43, 59 (1906).

[19] Costello v. United States, 350 U.S. 359 (U.S. 1956).

[20] Deutsch, Michael E.  “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists.”  75 J. Crim. L. & Criminology 1159. Winter, 1984 at 1165

[21] Id.

[22] Id.

[23] Id. at 1166

[24] Id.

[25] Id.

[26] Id. at 1167

[27] Id.

[28] Id. at 1168

[29] Id. at 1169

[30] Id.

[31] Id. at 1170

[32] Id.

[33] Id. at 1169

[34] Id.

[35] Id. at 1171

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 1172

[40] Id. at 1173

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 1178

[45] U.S. Constitution Amend. 5

[46] Deutsch, Michael E.  “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists.”  75 J. Crim. L. & Criminology 1159 at 1179

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id. at 1180

[52] Id. at 1181

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id. at 1182

[58] Id.

[59] Id.

[60] Id.

[61] Id. at 1185

[62] Id. at 1184

[63] Id. at 1185

[64] Id. at 1184

[65] Id. at 1185

[66] Id.

[67] Id.

[68] Id. at 1186

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id. at 1187

[74] National Association of Criminal Defense Lawyers, “Federal Grand Jury Reform”

[75] Costello v. United States, 350 U.S. 359 (1956)

[76] Id.

[77] Id.

[78] Costello v. United States, 350 U.S. 359 (1956)

[79] United States v. Calandra, 414 U.S. 338, 349 (1974)

[80] United States v. Williams, 504 U.S. 36, 36 (1992)

[81] United States v. Williams, 504 U.S. 36, 49 (1992) (internal citations removed)

[82] Id. (internal citations removed)

[83] International Union, UMWA v. Bagwell, 512 U.S. 821 (1994)

[84] Bentham, Jeremy, Introduction to the Principles of Morals and Legislation

[85] Laura G. Kniaz, “Animal Liberation and the Law: Animals Board the Underground Railroad,” 43 Buffalo L. Rev. 765, Winter, 1995

[86] Center for Responsive Politics, http://www.opensecrets.org

[87] Id.

[88] Id.

[89] Paige M. Tomaselli, “International Comparative Animal Cruelty Laws”

[90] Id.

[91] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

[92] Id.

[93] Id.

[94] Id.

[95] “The ALF Primer,” http://www.animalliberationfront.com/ALFront/ALFPrime.htm

[96] Id.

[97] Id.

[98] Henry Schuester, “Domestic terror: Who's most dangerous?” at CNN.com

[99] Id.

[100] Public Law 102-346--Aug. 26, 1992

[101] Id.

[102] http://www.shac7.com/hls.htm

[103] United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009)

[104] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)

[105] Id. at 448

[106] “The SHAC7 Conviction: A Blow to Free Speech and Compassionate Activism,” http://www.shac7.com/case.htm

[107] United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009) (Fisher, J., dissenting)

[108] Id.

[109] Id.

[110] Will Potter, “Animal Enterprise Terrorism 101,” Herbivore Magazine. November 17, 2007

[111] Indictment, United States v. Buddenberg (N. D. Cal. March 12, 2009)

[112] Will Potter, “Animal Rights Activists Indicted as ‘Terrorists’ For Home Protests.”  March 19, 2009, http://www.greenisthenewred.com

[113] Id.

[114] Id.

[115] Order Dismissing Indictment Without Prejudice and Denying as Moot Other Pending Motions, United States v. Buddenberg (N.D. Cal., July 12, 2010)

[116] Id.

[117] Laura G. Kniaz, “Animal Liberation and the Law: Animals Board the Underground Railroad,” 43 Buffalo L. Rev. at 821

[118] Id. at 822

[119] Id. at 823

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] Id. at 824

[127] Id.

[128] Id. at 825

[129] Ken Olsen, “Coronado Pleads to Helping ALF at MSU: Activist Takes Fall for WSU Damage, Too,” Moscow-Pullman Daily News, March 4 & 6, 1995, at 1A, 9A

[130] Interview with Jordan Halliday, July 15, 2010

[131] Id.

[132] Investigation on Jordan Halliday, SA Sean Replogle and SA Greg Knapp, September 11, 2008

[133] Id.

[134] Interview with Jordan Halliday, July 15, 2010.

[135] Id.

[136] Id.

[137] “To clarify on my case a little bit,” Jordan Halliday, July 22, 2009.  Jordan Halliday’s MySpace blog, http://www.myspace.com/xACROxVEGANx/

[138] Id.

[139] Id.

[140] Id.

[141] Id.

[142] Id.

[143] Id.

[144] Id.

[145] Id.

[146] Id.

[147] Id.

[148] Id.

[149] Id.

[150] Id.

[151] Id.

[152] Interview with Jordan Halliday, July 15, 2010.

[153] Id.

[154] Id.

[155] “To clarify on my case a little bit,” Jordan Halliday

[156] Id.

[157] Id.

[158] Id.

[159] “Why I am going to prison,” Jordan Halliday, December 27, 2010.  Jordan Halliday’s blog, http://xacrox.wordpress.com/

[160] Id.

[161] Id.

[162] Id.

[163] Id.

[164] Peter Young, “Interview with Jailed Grand Jury Prisoner Carrie Feldman,” November 19, 2009

[165] Id.

[166] Id.

[167] Id.

[168] Id.

[169] Id.

[170] Statement of Carrie Feldman, November 17, 2009

[171] Id.

[172] “A Short History of the Cases,” http://davenportgrandjury.wordpress.com

[173] Id.

[174] Id.

[175] Id.

[176] Id.

[177] “Scott pleads guilty to lesser charge,” September 14, 2010,  http://davenportgrandjury.wordpress.com

[178] Id.

[179] Federal Grand Jury Reform Report, http://www.nacdl.org/

[180] Deutsch, Michael E.  “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists.”  75 J. Crim. L. & Criminology 1159 at 1194

[181] Id. at 1189

[182] Id.

[183] Id. at 1193-94.

[184] Id. at 1195